Eunice Trevor, a partner at Philadelphia's Saltz Mongeluzzi Barrett & Bendesky, began using mini-documentaries as a litigation tool about 20 years ago. She soon discovered how effective the films were at convincing mediators, judges and opposing counsel that her clients deserved a favorable settlement. The method was so persuasive, in fact, that she now produces the films full time for her firm's catastrophic injury cases.
The mini-docs present a client's case in about 20 to 30 minutes. They include interviews with the clients, family members, medical and damages experts, and excerpts from witness depositions. They also include footage of accident sites and visual recreations to help viewers understand how the client was injured.
One of the documentaries Trevor made available to Lawdragon presented the case of Ivan Smith, a brain-damaged and partially paralyzed 27-year-old who was institutionalized for his aggressive behavior and tendency to start fires. Left alone at a group home, Smith started a fire in a bathroom. He was so severely burned that his right leg, the one leg that worked, had to be amputated below the knee. The interviews with Smith and his family members are heartbreaking. The film also clearly and succinctly explains the plaintiffs' theory of negligent supervision and the tremendous expense it will take to care for Smith.
Lawdragon: Why did you start doing these videos?
Eunice Trevor: I started preparing the videos or settlement documentaries about 20 years ago. I was frustrated that some of the decision makers on a case would not get the chance to actually see my client, a dynamic expert or impartial witness until the time of trial. The documentary is sent before the mediation to all potential decision makers - both present at the mediation or at a remote location, giving the decision makers the opportunity to preview the case.
I also incorporate excerpts of videotaped depositions of defendants' witnesses into the documentary, to allow the defense and the decision makers to see and hear their own admissions. Reading a transcript is not as effective as watching and listening to defendants' admissions, which can be extremely revealing - and at times - even laughable.
LD: How was it received at first? Did you have mediators and opposing counsel who declined to watch them because they felt the videos were unnecessary?
ET: One of my first documentaries was prepared for a case in federal court. I had sent the video to the judge for a settlement conference. At this conference, the judge was to rule on several of the defendants' motions for summary judgment. However, when all counsel entered the judge's chambers, he stated that he had watched the "movie" but did not get a chance to read the briefs. He then suggested a settlement figure for the case. The case eventually did settle for what was, at the time, the largest reported personal injury settlement in the history of Pennsylvania.
I knew then that this medium was a winner. And, I have never run into any resistance to watching the documentaries.
LD: Why and when did you decide to do them full time for your firm, and when did you incorporate a professional film staff as part of your team?
ET: I started making these documentaries full time six years ago. My firm recognized the power of this medium and its impact on the settlement value.
I have been working with the same camera person over the last 20 years. I have an assistant who types the text of interviews and schedules videotaped interviews with potential witnesses. More recently, I have incorporated a video editor into our team who follows my script but does all of the technical editing. We have also converted an office into a studio to interview some of the witnesses. I use a nearby sound studio to record the professional voice-over who leads the listener through the story and introduces the witnesses.
LD: Who are these for primarily?
ET: The documentaries are for any decision makers in the case - defense counsel, adjusters, mediators and judges presiding over settlement. The purpose is to increase the chances of reaching a maximum settlement without the risk of trial, by presenting a video which can explain the case in 20 to 30 minutes with the opportunity to control the way the witnesses and facts are presented.
Key damages witnesses are presented: Plaintiffs, family members, friends and expert testimony are presented with overlay of photographs of the injury and video of therapy and daily struggles of the plaintiffs. The best two or three minutes of the witnesses are presented. Even a plaintiff who did not testify convincingly at his or her deposition gets another "bite of the apple" and a chance to explain their ordeal in the privacy of their own home.
Liability issues are confronted: A preview of our expert's testimony may be presented in a powerful way. Even experts who may not be the most dynamic speakers have their testimony enhanced by the interjection of video of the accident site, related demonstrations or animations to prove our theory of liability. Our method of presenting our experts after the videotaped deposition admissions of defendants' witnesses or corporate designees is very convincing.
LD: Why do you feel this contributes to the process of an early settlement? Presumably, opposing counsel will already know most of what's in the videos.
ET: Reading a physiatrist's report that explains the impact of a brachial plexus injury is much less compelling than watching our client struggle to put on a t-shirt for almost two minutes.
During the process of creating the videos, I spend a substantial amount of time with the plaintiffs and very often discover witnesses whom the defendant has not deposed. These witnesses, such as a pastor describing the loss of our plaintiff to the church community, or a lay witness describing the impact of a brain injury, in their own words, are very powerful.
Reading a defendant's admission is much less persuasive than watching the defendant at his videotaped deposition squirm, wince and struggle to answer a question which only required a simple yes or no.
LD: Do these work most of the time? Or do you have plenty of instances where the films will be presented but the opposing side still wants to go to trial?
Of course some cases go to trial, but the documentaries bring the case into full relief for the decision makers and increase the likelihood of resolving the case.
LD: When during the litigation do you make these films? Does the firm now seek to produce these in most or all of its cases?
ET: I start documenting the case immediately - filming plaintiffs in the hospital, during rehab, etc. I finalize the documentary after discovery and present it as soon as the case is ripe for settlement.
The firm is now producing the documentaries in catastrophic injury cases. However, I have created videos in situations where the actual injury is challenged in order to "prove" the injury and/or to explain our theory of liability. For example, some closed head injuries that do not appear on an MRI can be proven by testimonials from family members, co-workers and friends. Complex liability issues can be explained with animation, demonstrations and expert testimony.
LD: What type of balance are you striving for in terms of legal content versus emotional content?
ET: I try to create a dynamic where the liability and damages are intertwined.
I think it is important to convince the defense that we have a very good chance of proving liability before we present the damages or emotional impact of the case. Therefore, it is a delicate balance of attempting to have the viewer feel vulnerable - with the defendants' admissions and plaintiff's expert testimony presented before they preview very powerful and emotional testimony about the plaintiff's injuries.
LD: The burn images and video from Ivan Smith's case were disturbing and hard to watch. Is there a danger in going too far in terms of what a plaintiffs' lawyer might try to show in the video?
ET: Yes, I think it can be overdone.
Some injuries, such as burns, may be difficult to look at. In Ivan's case, he even talked about having a hard time looking at his scars. I try to use different techniques to show graphic photos/video describing the injury without having the viewer wanting to turn the video off. I show the photos and video for seconds at a time and use it for descriptive value, such as when the doctor is explaining dressing changes or rehabilitation - rather than just shock value.
LD: You also use footage of the location of the incident. Would not the defense be in a position to refuse access so long as they are cooperating with normal discovery procedures?
ET: Investigation of the accident site is a normal part of the discovery process, and there should not be a problem with getting entry. On a few occasions, I have had to get a court order for inspection of the site, but it has not been a problem.
LD: Have you seen more plaintiffs' lawyers using this video strategy over time?
ET: Yes. When I first started creating these documentaries, I knew of only one other firm in the country that did something similar. Now, I am asked frequently about the process and know of other firms creating video presentations, in some form, for select cases.
Recently, a local law school asked for copies of the documentaries to show in one of their classes on settlement.
LD: How important is production value? Is there a danger of lawyers starting this process and then showing the opposing side and mediators something that looks unprofessional, even if it contains powerful material?
ET: It is important to have a professional presentation. As with all submissions for mediation or settlement, the end product should look professional. Powerful material will be compromised if presented poorly.
LD: How much on average does your firm spend on each film?
ET: Production costs (filming and editing) done in-house is approximately $8,000 to $20,000 depending on the complexity of the case. This does not include expert fees, medical illustrations, animation, etc.
If an outside production company is used, I have been told that a 20 to 30 minute video costs approximately $50,000 to $75,000, just for filming and editing. Even if an outside company does the filming and editing, the attorney on the case must oversee the work and be very involved.
However, the cost of the documentary is far outweighed by the tremendous value it adds to the settlement. I have often been told by mediators and judges that the case would not have settled for such a substantial amount - had it not been for the video.
LD: Anything else you want to say about this process?
ET: Technology has caused a shift from the written word. People expect to get their information quickly and in a visually interesting way. I think to best represent an injured plaintiff, it is important for lawyers to become familiar with the documentary process which can optimize the client's chances of reaching a maximum settlement without the risk, expense and the physical, mental and emotional strain of trial.